Posts Tagged ‘American Bar Association’

Nursing Home Resident’s Lawyer Did Nothing Wrong

FEBRUARY 23, 2015 VOLUME 22 NUMBER 8

From time to time we report on cases in which lawyers are disciplined for behavior involving clients who are older or have disabilities. We do that not out of any sense of schadenfreude, but because the behavior described in the disciplinary proceeding is illustrative of an important limitation on lawyers’ behavior.

This week, though, we have a different type of disciplinary proceeding to describe. The lawyer in question was not disciplined, and for good reason. Let us explain.

Neil French (not his real name) was in his mid-70s when he signed a power of attorney giving his daughter power to make financial and personal decisions for him. Three years later he had a heart attack, and ended up being transferred to a nursing home in his home state of North Dakota. He was signed in by his daughter, using the power of attorney; as part of the intake process, the facility had his daughter sign a form indicating that Neil was “incapable of making medical decisions” for himself.

A few months later Ilsa, a friend of Neil’s, contacted local lawyer Gregory Runge. Ilsa told Mr. Runge that her friend wanted to leave the nursing home and return to his own home. Mr. Runge double-checked the local court records to see that there was no guardianship or conservatorship proceeding pending, and he told Ilsa that there did not appear to be any reason Neil could not simply walk out of the nursing home. If necessary, he could revoke the power of attorney he had given his daughter — that would remove her authority to sign him in and force her to begin a guardianship proceeding if she thought he was incapable of making his own decisions.

In the course of checking out the story told to him by Ilsa, Mr. Runge looked up other court records. Though he could not find any guardianship proceeding he did find a request that the court issue a restraining order against Ilsa. The request was signed by Neil’s daughter, signing as agent under the power of attorney; it alleged that Ilsa had been guilty of “disorderly conduct” in her contact with Neil.

A few days later Mr. Runge heard from Ilsa again. She told him that Neil wanted him to bring a form revoking the power of attorney to the nursing home. Mr. Runge called Neil directly and confirmed that he wanted to leave, but that his daughter had been preventing him from going home. Mr. Runge told him that he could simply walk out of the nursing home, but agreed to bring the revocation document to Neil for his signature.

The next day Mr. Runge visited Neil in the nursing home. He explained that the power of attorney was revocable, and handed Neil a revocation form for his signature. A nurse came into the room as the two were talking, and Mr. Runge explained to her that Neil had revoked the power of attorney and intended to leave the home. Then Mr. Runge returned to his office.

A short time later Mr. Runge received a call from someone at the nursing home. They told him that Neil had been determined to be incapacitated, and that the revocation of his power of attorney would probably be ineffective. Mr. Runge responded that there did not seem to be any court finding of incapacity, that Neil had seemed to understand the significance of the revocation document, and that his daughter no longer had any authority over the decision since the power of attorney had been revoked. Neil left the nursing home later that day, and moved in to Ilsa’s apartment.

Neil did not return to the nursing home, and apparently his daughter did not initiate a guardianship proceeding. A welfare check conducted (apparently at the behest of the nursing facility) later on the day of his move found that his condition was “OK”, and that he did not want to return.

But Neil’s daughter did file a complaint with the North Dakota Supreme Court’s Disciplinary Board. She alleged that he acted improperly by preparing the revocation document without talking with her or other family members, or ascertaining Neil’s medical condition.

After a hearing, the Disciplinary Board’s local investigative committee issued a preliminary finding that Mr. Runge had violated the Rules of Professional Conduct. According to this finding, he had acted improperly by preparing a revocation of a power of attorney for a client with “limited capacity” whom he had never met. The finding also criticized him for not first communicating “with the client’s appointed representative, a family member who had been appointed in a durable power of attorney.” The committee recommended that Mr. Runge be “issued an admonishment” (the lowest level of discipline). The full Disciplinary Board upheld the proposed discipline.

After Mr. Runge appealed his admonishment, and the North Dakota Supreme Court considered the facts and holding. The state’s high court noted that North Dakota disciplinary rules give a lawyer direction about how to represent a client whose capacity may be diminished: the lawyer should maintain as close to a “normal” lawyer-client relationship as possible. Because Neil had not been found to be incapacitated by any court (there was no guardianship or conservatorship in place), and after Mr. Runge had met with him and discussed his options and the effect of revoking the power of attorney, it was entirely permissible for him to determine that Neil understood what he was doing and wanted to proceed. There was no requirement that Mr. Runge speak with Neil’s daughter before following his wishes, and the complaint against him was dismissed. In the Matter of Runge, February 12, 2015.

North Dakota, like the majority of states, has patterned its ethical rules governing lawyers after the American Bar Association’s Model Rules of Professional Conduct. So has Arizona. That means that the ethical rules governing representation of a person with diminished capacity in Arizona should lead to the same result as that reached by the North Dakota Supreme Court. It can be a challenge to determine whether a client with medical issues and complicated family dynamics really understands what they intend to do, but it is precisely the challenge that elder law attorneys navigate regularly and, frankly, enjoy. Mr. Runge should be commended for helping Neil accomplish his wishes.

Advice On Making Health Care Decisions For Someone Else

AUGUST 10, 2009  VOLUME 16, NUMBER 50 

When you name someone as your health care agent, you literally entrust them with life-and-death decisions. When you are the agent the job can sometimes seem overwhelming.

Sometimes health care decisions must be made by someone who was not even designated in a power of attorney. A “surrogate” decision-maker (usually, but not always, the closest family member) is often empowered by state law to act when the patient has not made a specific choice. Few patients have had specific discussions with their agents about their health care wishes, and those who have not gotten around to signing advance directives are even less likely to have given any direction.

Although thousands upon thousands of people make health care decisions for someone else every year, there is little help or direction available for the agent or surrogate. Lawyers may be familiar with end-of-life care and decisions, but they seldom get involved — and may be an expensive way to facilitate decisions even if they are available.

We can offer some general advice and a pair of printed resources for those making health care decisions for someone else. First, a few suggestions:

  • Talk to the person who has named you as agent about his or her wishes. Sooner is better than later, but even a seriously ill, demented or incapacitated patient might be able to give some direction.
  • If you know you have been named as health care agent, ask for a copy of the power of attorney. It might include provisions that surprise you, or that you need clarified.
  • When you have to begin using the health care power of attorney, make sure you get all the information you need. Talk to doctors, nurses and caretakers. Explain why you need to have your questions answered, and insist that you get them answered.
  • If you do not fully understand the medical issues involved in a given procedure or test, tell the providers you need more information. Do not hesitate to get a second opinion when you are uncertain what you should be doing.
  • Remember that you are not applying your own standards to the decision, but those of the person for whom you are acting. This can be the most difficult part of handling a health care power of attorney or surrogacy. The law recognizes — and favors — what it calls “substituted judgment.” That means that you are expected to substitute the patient’s judgment for your own, not the other way around.

There are at least two good printed resources for a health care decision-maker to consult. Both are online and free. We regularly recommend these to our clients (and their families):

Lawyer Suspended After Filing Guardianship Petition on Client

JUNE 22, 2009  VOLUME 16, NUMBER 45

A lawyer’s job is, of course, to help his or her client to accomplish the client’s goals. Sometimes, though, the client’s capacity may be diminished, and particularly in the elder law practice. What should the lawyer do when the client seems to be vulnerable to financial exploitation, or physical or emotional abuse? How far may the lawyer go to protect the client? When does the lawyer have a duty to take action?

The rules of ethics governing lawyers actually address the question. The American Bar Association has developed “Model Rules of Professional Responsibility,” which have been adopted (in some form) in nearly every state. One of those Model Rules, Rule 1.14, addresses how to deal with a client with diminished capacity. The central principle: a lawyer should strive to “maintain a normal client-lawyer relationship” with the client, despite the diminished capacity. The Rule specifically recognizes that sometimes it can even be necessary for the lawyer to initiate some sort of protective action — possibly including a guardianship or conservatorship proceeding.

Stephen Eugster, a Spokane, Washington, lawyer, thought he faced that question. An elderly widow had consulted him about the estate plan she and her husband had set up before the husband’s death. Although the plan gave considerable control to her son, the widow no longer trusted the son to handle her finances. She wanted to remove him as her agent and trustee, and try to make him return assets she thought had improperly been transferred into his control.

Mr. Eugster prepared new documents naming himself as agent and trustee, and had his client sign them. Then he approached the son about getting further information and transfer of assets. As it happened, the son was also a former client of Mr. Eugster’s.

After a brief inquiry Mr. Eugster decided that his client’s son was acting properly. He wrote to his client, suggesting that she should be willing to trust her son and let him once again take responsibility for all her finances. She responded by seeking advice from a different lawyer, and her new attorney sent Mr. Eugster a letter dismissing him and revoking his authority under powers of attorney and the trust.

That apparently set off Mr. Eugster’s alarm bells. He was convinced, he said later, that his client must not have been competent, and that the new lawyer and her new trustee must have exercised undue influence over her. Without consulting or even visiting her, he filed a petition seeking appointment of her son as her guardian.

Several months, one professional mental evaluation and $13,500 later, the client conclusively established that she was competent and acting on her own initiative. The guardianship petition was dismissed. The client, however, complained to the Washington State Bar Association.

After a lengthy investigation and hearing process the Disciplinary Board of the Bar recommended that Mr. Eugster should be disbarred. The Washington Supreme Court, in a 5-4 vote, softened the punishment to an 18-month suspension and an order that he repay the legal fees his former client incurred to defend the guardianship. Disciplinary Proceeding Against Eugster, June 11, 2009.

Mr. Eugster had argued that Rule 1.14 recognized that he might have an obligation to actually file the guardianship petition, and that he truly believed that his client was at risk. The Disciplinary Board pointed out that Mr. Eugster had not actually made an investigation to determine whether his client’s capacity had slipped since had last seen her several months before, and that in any event his Petition revealed extensive information obtained from his client during the representation. The Court agreed with the Bar that Mr. Eugster had violated his ethical duties in a number of ways, including acting against his client’s interest, seeking a resolution that ran counter to the purpose for which she had retained him, and disclosure of client confidences.

Four Justices dissented from the Supreme Court’s opinion. All four of them would have imposed permanent disbarment rather than the 18-month suspension of Mr. Eugster’s law license.

What might Mr. Eugster have done if he did think he needed to “protect” his client? The ABA’s Rule 1.14 actually provides several suggestions, none of which Mr. Eugster seems to have considered. As part of the Rules, the Bar offers detailed Comments that lawyers can look to when trying to resolve ethical dilemmas. Comment [5] to Rule 1.14 gives some useful guidance to lawyers who may be concerned about a client’s vulnerability. The basic idea behind the comment: a guardianship petition, while permitted, should be the last resort, after consultations with other professionals, family members, state protective services and other individuals or groups. Always the lawyer should keep in mind the client’s wishes, values, best interests and goals .

Ironically, the lawyer who took over Mr. Eugster’s client seems to have reviewed Rule 1.14 and the Comments — and acted accordingly. One of the suggestions made by the Comment is that the lawyer might seek out appropriate professional services and use powers of attorney and other protective arrangements short of court action. The new lawyer’s approach followed those suggestions perfectly: he had the client sign a new trust and powers of attorney, naming a professional fiduciary to manage her affairs. That allowed the client’s interests to be protected without compromising her desire not to extend her son’s authority over her personal or financial affairs.

Misuse of Durable Powers of Attorney

JULY 10, 1995 VOLUME 3, NUMBER 2

Durable financial powers of attorney have been with us (in Arizona) for over twenty years, and they have become a tremendously popular planning device. Durable powers of attorney are often intended to avoid the costly and embarrassing process of guardianship or conservatorship for an incompetent person. However, with the growth in use of durable powers has come an increase in misuse, abuse and outright theft from vulnerable adults.

The “durable” in durable powers of attorney is a relatively modern invention. Before the early 1970s, all powers of attorney automatically terminated with the death or incapacity of the grantor (the person giving the power). In 1973 Arizona became one of the first states to permit powers of attorney to survive disability. A power need only provide that it either survives the disability of the principal (grantor) or becomes effective upon disability. Today, the majority of powers are durable.

The very strength of the durable power of attorney is also its weakness. Although the problems associated with Court supervision in conservatorship proceedings are substantial, the Court’s involvement does help assure that abuse is minimized. And conservators must post a financial bond which can be used to replace stolen money.

In a recent survey by the American Bar Association, estate planning lawyers were asked whether they had seen abuse of powers of attorney. While most lawyers had serious concerns about such abuse, the suggestions made for dealing with the problem tended toward better education of consumers and more careful selection of agents rather than government regulation of powers of attorney. Unfortunately, the problem continues to grow and instances of abuse mount.

Arizona’s New Law on Powers of Attorney

Widespread abuse of powers of attorney has caused considerable consternation in Arizona in recent years. In each of the past several years, proposals have been introduced in the Arizona Legislature to make it more difficult to create powers of attorney, to make agents subject to some sort of accounting requirement, or to stiffen penalties for abuse.

This year, one small change was adopted. Beginning this week, all newly executed powers of attorney must be notarized and witnessed by someone other than the agent or the principal’s family members. This change may make it more difficult to abuse the trust placed in agents by grantors.

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